Citation Nr: 0004142
Decision Date: 02/16/00 Archive Date: 02/23/00
DOCKET NO. 98-18 577 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Pittsburgh, Pennsylvania
THE ISSUES
1. Entitlement to service connection for polycythemia.
2. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
3. Entitlement to service connection for a bilateral ankle
disorder, other than arthritis and calcaneal spurs of the
left ankle.
4. Entitlement to an increased rating for arthritis and
calcaneal spurs of the left ankle, currently evaluated as 20
percent disabling.
5. Entitlement to an increased rating for a low back
disorder, currently evaluated as 20 percent disabling.
6. Entitlement to an increased rating for hypertension,
currently evaluated as 10 percent disabling.
7. Entitlement to a total compensation rating based on
individual unemployability.
8. Entitlement to an automobile or other conveyance and
adaptive equipment.
WITNESSES AT HEARING ON APPEAL
Veteran and his wife
ATTORNEY FOR THE BOARD
K. Parakkal, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1970 to June
1976.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a December 1997 RO decision which denied the
veteran's claims of service connection for polycythemia,
PTSD, and a bilateral ankle disorder (other than arthritis
and calcaneal spurs of the left ankle), and denied his claims
for increased ratings for arthritis and calcaneal spurs of
the left ankle, a low back disorder, and hypertension.
During the pendency of his appeal to the Board, the veteran's
rating for arthritis and calcaneal spurs of the left ankle
was increased from 10 to 20 percent; and he continues to
appeal to the Board for a higher rating. This matter also
arises from an October 1998 RO decision which denied the
veteran's claim for a total compensation rating based on
individual unemployability and a February 1999 RO decision
which denied his claim for an automobile or other conveyance
and adaptive equipment.
By December 1997 RO decision, the veteran's application to
reopen a claim of service connection for a respiratory
disorder (claimed as asthma) was denied. The veteran never
appealed this decision by filing a timely notice of
disagreement, and a timely substantive appeal after the
issuance of a statement of the case. 38 U.S.C.A. § 7105(a)
(West 1991); 38 C.F.R. § 20.200 (1999). In the absence of a
properly perfected appeal, the Board is without jurisdiction
to determine the merits of his case. Roy v. Brown, 5 Vet.
App. 554 (1993). Many years later, at a May 1999 Travel
Board hearing, the veteran provided testimony regarding
asthma. The veteran appears to be interested in reopening
his claim for service connection for asthma; as such, this
matter is referred to the RO for appropriate action.
In a May 1999 statement, the veteran withdrew his claims of
service connection for granuloma and diabetes mellitus; as
such, these matters are no longer before the Board and will
not be discussed in the following decision. 38 C.F.R.
§ 20.204 (1999).
FINDING OF FACT
The veteran's claims of service connection for polycythemia,
PTSD, and a bilateral ankle disorder (other than arthritis
and calcaneal spurs of the left ankle) are plausible.
CONCLUSION OF LAW
The claims of service connection for polycythemia, PTSD, and
a bilateral ankle disorder (other than arthritis and
calcaneal spurs of the left ankle) are well grounded.
38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
The threshold question in any claim is whether the veteran
has met his burden of submitting evidence sufficient to
justify a belief that his claim of service connection is well
grounded. In order for him to meet this burden, he must
submit evidence sufficient to justify a belief that his claim
is plausible. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski,
1 Vet. App. 78 (1990).
A well grounded claim requires competent evidence of a
current disability (a medical diagnosis), of incurrence or
aggravation of a disease or injury in service (lay or medical
evidence), and of a nexus between the in-service injury or
disease and the current disability (medical evidence).
Caluza v. Brown, 7 Vet. App. 498 (1995). Where the
determinative issue involves medical causation or medical
diagnosis, medical evidence to the effect that the claim is
plausible or possible is required in order for a claim to be
considered well grounded. Grottveit v. Brown, 5 Vet. App. 91
(1993).
A. Polycythemia
While the veteran was never diagnosed as having polycythemia
during service, it is notable that he did have elevated
hematocrit levels shortly before his release from service.
When he was examined by VA in November 1976, only a few
months after his service discharge, polycythemia was indeed
diagnosed. Thereafter, there is no evidence of polycythemia
until the 1990s. Private and VA medical evidence, from 1995
and 1996, reflect consistent diagnoses of polycythemia.
Significantly, an April 1996 VA medical record includes the
opinion that polycythemia is most likely related to pulmonary
hypertension/hypoxemia. The Board points out that the
veteran is currently in receipt of service connection for
hypertension. In sum, given the elevated levels of
hematocrit during service, evidence of polycythemia shortly
after service and currently, and the April 1996 VA opinion
possibly relating polycythemia to service-connected
hypertension, the Board finds that the veteran's claim of
service connection is plausible and thus well grounded.
U.S.C.A. § 5107(a); 38 C.F.R. § 3.310; Caluza, supra;
Watai v. Brown, 9 Vet. App. 441 (1996) (a "cautiously
worded" assessment may be considered "favorable to the
appellant.")
B. PTSD
Service connection for PTSD requires medical evidence
diagnosing the condition in accordance with 38 C.F.R.
§ 4.125(a) [i.e., under the criteria of DSM-IV]; a link,
established by medical evidence, between current symptoms and
an in-service stressor; and credible supporting evidence that
the claimed in-service stressor occurred. If the evidence
establishes that the veteran engaged in combat with the enemy
and the claimed stressor is related to that combat, in the
absence of clear and convincing evidence to the contrary, and
provided that the claimed stressor is consistent with the
circumstances, conditions, or hardships of the veteran's
service, the veteran's lay testimony alone may establish the
occurrence of the claimed in-service stressor. 38 C.F.R.
§ 3.304(f) (as revised June 18, 1999, effective March 7,
1997; 64 Fed.Reg. 32807-32808 (1999)).
At a September 1997 VA compensation examination, the veteran
related he had been injured in a mortar attack during a
period of foreign service, but could not remember the details
surrounding the event. Additionally, he indicated that when
he had service in Spain, he fitted former prisoners of war
(POWs) with clothing. He indicated that many of the POWs he
dealt with were severely injured (e.g. with missing limbs)
and that this was deeply distressing to him. Following an
examination of the veteran, the VA examiner rendered a
provisional diagnosis of PTSD, pending verification of the
veteran's stressors. (It is noted that formal verification
of the veteran's stressors has not yet been undertaken.)
Given the veteran's allegations of stressors related to
active service and the provisional diagnosis of PTSD, the
Board finds that his claim of service connection is plausible
and well grounded. Cohen, supra.
C. Bilateral Ankle Disorder
The veteran's service medical records are replete with
references to left ankle problems. Additionally, there are
numerous references to right ankle problems during service,
including in March 1971 and July 1975. A review of the post-
service medical evidence shows that when he was examined by
the VA in August 1996, he was diagnosed as having a
longstanding history of bilateral ankle pain since his
military service. More recent medical evidence shows he has
been diagnosed as having bilateral ankle arthritis and
bilateral inferior calcaneal spurs with residual pain and
occasional swelling.
Given the evidence of bilateral ankle problems in service,
the veteran's assertions of bilateral ankle problems ever
since service, and current medical evidence of such, the
Board find that the claim of service connection is plausible
and well grounded. 38 U.S.C.A. § 5107(a); Savage v. Gober,
10 Vet. App. 488 (1997); Caluza, supra..
ORDER
The claims of service connection for polycythemia, PTSD, and
a bilateral ankle disorder (other than arthritis and
calcaneal spurs of the left ankle) are well grounded; the
appeal is allowed subject to further action as discussed
below.
REMAND
As noted above, the veteran's claims of service connection
for polycythemia, PTSD, and a bilateral ankle disorder (other
than arthritis and calcaneal spurs of the left ankle) are
well grounded. 38 U.S.C.A. § 5107(a). The veteran's claims
for increased ratings for arthritis and calcaneal spurs of
the left ankle, a low back disorder, and hypertension are
also well grounded within the meaning of 38 U.S.C.A.
§ 5107(a). Caffrey v. Brown, 6 Vet. App. 377 (1994);
Proscelle v. Derwinski, 2 Vet. App. (1992). When a claimant
submits a well-grounded claim, VA must assist him in
developing the facts pertinent to the claim. Id.
Given the conflicting evidence regarding the nature and
etiology of polycythemia, PTSD, and a bilateral ankle
disorder, the Board finds that current VA examinations are
warranted as part of VA's duty to assist. Green v.
Derwinski, 1 Vet. App. 121 (1991). It is also the judgment
of the Board that current compensation examinations of the
service-connected low back and left ankle disorders, and
hypertension are warranted. Caffrey v. Brown, 6 Vet. App.
377 (1994). Additionally, an attempt should also be made to
secure additional relevant medical records. Murincsak v.
Derwinski, 2 Vet. App. 363 (1992).
With regard to the veteran's claim of service connection for
PTSD, it is noted that his description of service stressors
is vague. As such, the RO should again instruct the veteran
to provide detailed information regarding his service
stressors so that the U.S. Armed Services Center for Research
of Unit Records (USASCRUR) can attempt to verify such.
Zarycki v. Brown, 6 Vet. App. 91 (1993).
It is noted that since the veteran was last furnished a
statement of the case in September 1998 (with regard to his
service connection and increased rating claims), additional
evidence has been received into the record, none of which has
been previously considered. Pursuant to 38 C.F.R. §§ 19.37,
20.1304 (c), any pertinent evidence, not previously reviewed
which is received by the RO prior to the transfer of the
record to the Board or is accepted by the Board, must be
initially reviewed by the agency of original jurisdiction,
unless this procedural right is waived by the veteran or his
representative. Since there is no evidence indicating that
the veteran wishes to waive initial RO review of the
additional evidence, the Board must refer these records to
the RO for initial review.
The U.S. Court of Appeals for Veterans Claims has held that
when a determination on one issue could have a significant
impact on the outcome of another issue, such issues are
considered inextricably intertwined and VA is required to
decide those issues together. Harris v. Derwinski, 1 Vet.
App. 180 (1991). In the judgment of the Board, the veteran's
claim for a total compensation rating based on individual
unemployability is inextricably intertwined with his
increased rating claims. As such, adjudication of the total
compensation rating claim will be held in abeyance pending
the resolution of his increased rating claims. Similarly,
with regard to the claim for automobile or other conveyance
and adaptive equipment, this issue is inextricably
intertwined with the veteran's increased rating claim for a
left ankle disorder as well as his claim for service
connection for a bilateral ankle disorder. The claims are
inextricably intertwined as pending evidentiary development
of the ankle issues may reveal loss of use of the feet, which
is one of the requirements for automobile and adaptive
equipment. 38 C.F.R. §§ 3.808, 17.156 (1999). As such,
adjudication of the claim for automobile or other conveyance
and adaptive equipment will also be held in abeyance pending
the resolution of his inextricably intertwined claims.
The law requires full compliance with all orders in this
remand. Stegall v. West, 11 Vet. App. 268 (1998). Although
the instructions in this remand should be carried out in a
logical chronological sequence, no instruction may be given a
lower order of priority in terms of the necessity of carrying
out the instruction completely.
Accordingly, the case is REMANDED for the following action:
1. The RO should contact the veteran and
ask him to furnish the names and
addresses of all VA and non-VA medical
providers who have treated him for
polycythemia, any psychiatric disorders,
ankle and low back disorders, and
hypertension since his service discharge,
including but not limited to Dr. Rueda,
Ms. Ann Detrick, and the VA facilities in
Pittsburgh, Pennsylvania. After
obtaining any needed release forms from
the veteran, the RO should directly
contact the medical providers and obtain
copies of the records not already in the
claims file. The RO should also
associate with the claims file a copy of
the February 1999 determination denying
the veteran's claim for an automobile or
other conveyance and adaptive equipment.
2. The RO should request from the
veteran a statement containing as much
detail as possible regarding the
stressors to which he was exposed during
his period of service. He should be
asked to provide specific details of the
claimed stressful events during service,
such as dates, places, detailed
descriptions of the events, his service
units, duty assignments and the names and
other identifying information concerning
any individuals involved in the events.
He should be told that the information is
necessary to obtain supportive evidence
of stressful events and that failure to
respond may result in an adverse
determination.
3. Regardless of whether or not the
veteran provides a detailed stressor
statement, the RO must then review the
entire claims file, including the
veteran's previous statements of
stressors, his hearing testimony, and any
additional information submitted by the
veteran or otherwise obtained pursuant to
this remand, and prepare a summary of all
his claimed stressors. This summary and
all associated documents should be sent
to the U.S. Armed Services Center for
Research of Unit Records (USASCRUR), 7798
Cissna Road, Springfield, VA 22150. The
USASCRUR should be requested to provide
any information which might corroborate
the veteran's alleged stressors, to
include unit histories regarding the
veteran's assigned units during his
service in Vietnam.
4. The RO should schedule the veteran
for a VA examination by a specialist in
hematology to assess the nature and
etiology of his polycythemia. All
indicated tests should be performed and
all pertinent findings should be clearly
described. The examiner should also
state his or her medical opinion, based
on the evidence contained in the medical
records and laboratory studies which are
of record, whether it is at least as
likely as not that polycythemia had its
onset during the veteran's active service
and/or whether it was caused by or
increased as a result of his service-
connected hypertension. The claims
folder and a copy of this remand must be
made available to the examining physician
in conjunction with the examination so
that he/she may review pertinent aspects
of the veteran's medical history.
5. The RO should schedule the veteran
for a psychiatric examination to diagnose
or rule out PTSD. All indicated testing
should be accomplished. Based on his/her
review of the case, it is requested that
the examiner express an opinion as to
whether the veteran is currently
suffering from PTSD due to disease or
injury which was incurred in or
aggravated by service. If the veteran is
diagnosed with PTSD, the examiner should
identify each claimed stressor which is
sufficient to support the diagnosis and
state whether there is a causal
relationship between the stressor and the
veteran's present symptomatology. The
claims folder and a copy of this remand
must be made available to the examining
physician in conjunction with the
examination so that he/she may review
pertinent aspects of the veteran's
medical history.
6. The veteran should be scheduled for a
VA orthopedic examination to clarify the
nature and severity of his low back and
ankle disabilities. The claims folder
and a copy of this remand must be made
available to the examining physician in
conjunction with the examination so that
he/she may review pertinent aspects of
the appellant's medical history. The
examination should include X-ray studies
and complete observations of the ranges
of motion of the affected areas. All
findings should be reported in detail.
The examiner should be asked to determine
whether the service-connected left ankle
disorder and service-connected low back
disorder result in weakened movement,
excess fatigability, or incoordination
attributable to the service-connected
disability; and if feasible, these
determinations should be expressed in
terms of the degree of additional range
of motion loss due to any weakened
movement, excess fatigability, or
incoordination. The examiner should be
asked to express an opinion on whether
pain could significantly limit functional
ability during flare-ups or on repeated
use over time. This determination should
also, if feasible, be portrayed in terms
of the degree of additional range of
motion loss due to pain on use or during
flare-ups. The examiner should record
any objective displays of pain. The
examiner should also render an opinion as
to whether the service-connected low back
pathology and service-connected left
ankle pathology effect the veteran's
ability to follow a substantially gainful
occupation. Additionally, the examiner
should answer the following questions:
a. State as precisely as possible the
diagnoses of all ankle disorders the
veteran currently has.
b. For each diagnosis listed in "a,"
above, state as precisely as possible the
time of onset of the disorder and give a
medical opinion as to whether the
disorder is etiologically related to a
disease or injury the veteran had in
service.
c. For each diagnosis listed in "a,"
above, state a medical opinion as to
whether the disorder was caused by or
increased in severity as a result of the
veteran's service-connected low back or
left ankle disorders.
The examiner should set forth in detail
all findings that provide a basis for the
opinion.
7. The veteran should be afforded a VA
cardiovascular examination to determine
the current severity of his service-
connected hypertension. In scheduling
the examination, the RO should note that
the VA rating schedule requires multiple
blood pressure readings over specific
periods of time. All appropriate testing
in this regard should be accomplished.
The report of examination should include
a detailed assessment of the severity of
all manifestations of the veteran's
service-connected hypertension. The
claims folder and a copy of this remand
must be made available to the examining
physician in conjunction with the
examination so that he/she may review
pertinent aspects of the veteran's
medical history.
8. Thereafter, the RO should review the
entire record and readjudicate the
veteran's claims of service connection
for polycythemia, PTSD, and a bilateral
ankle disorder (other than arthritis and
calcaneal spurs of the left ankle); his
claims for increased ratings for
arthritis and calcaneal spurs of the left
ankle, a low back disorder, and
hypertension; his claim for a total
compensation rating based on individual
unemployability; and his claim for
entitlement to an automobile or other
conveyance and adaptive equipment. (With
regard to the veteran's claim for an
increased rating for hypertension, it is
noted that such was pending when the
regulations pertaining to cardiovascular
disabilities were revised as such he is
entitled to the version of the law most
favorable to him. Karnas v. Derwinski,
1 Vet. App. 308 (1990).) If the claims
are denied, the veteran should be
provided a supplemental statement of the
case and given the opportunity to
respond. Thereafter, the case should be
returned to the Board for further
appellate consideration.
The purpose of this remand is to accomplish additional
development, and it is not the Board's intent to imply
whether the benefits requested should be granted or denied.
Additionally, the veteran is informed he may furnish
additional evidence and/or argument while the case is in
remand status. See Kutscherousky v. West, 12 Vet. App. 369
(1999); Colon v. Brown, 9 Vet. App. 104 (1996); Quarles v.
Derwinski, 3 Vet. App. 129 (1992); Booth v. Brown, 8 Vet.
App. 109 (1995).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1999) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been
remanded by the Board and the Court. See M21-1, Part IV,
paras. 8.44-8.45 and 38.02-38.03.
G. H. SHUFELT
Member, Board of Veterans' Appeals